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The Queen v Hii [2006] NZCA 61 (10 April 2006)

Last Updated: 21 April 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA99/05

THE QUEEN

v

VINCENT DING PENG HII

Hearing: 3 April 2006

Court: O'Regan, John Hansen and Harrison JJ

Counsel: N G Cooke for Appellant
A R Burns for Crown

Judgment: 10 April 2006

JUDGMENT OF THE COURT

The appeals against conviction and sentence are both dismissed.

REASONS

(Given by O’Regan J)

Introduction

[1] The appellant, Mr Hii, was found guilty after a jury trial in the Auckland District Court of 18 charges under s 229A of the Crimes Act 1961. Nine of these charges were counts of obtaining a document capable of being used to obtain a pecuniary advantage (namely a credit card) with intent to defraud. The other nine were counts of using such a document (again, a credit card) for the purpose of obtaining a pecuniary advantage. The trial judge, Judge Kiernan, sentenced him to concurrent terms of imprisonment for two years and nine months on each charge.
[2] Mr Hii appeals against both conviction and sentence.

Charges

[3] The charges related to events which occurred in a five month period from June to October 2002. At that time Mr Hii was a Mobile Mortgage Manager for the Bank of New Zealand. He made ten applications for credit cards, ostensibly on behalf of customers of the Bank. Mr Hii said that these were genuine customers of the Bank, but the prosecution evidence was that they were, with one or two exceptions, fictitious. The addresses for the alleged customers were addresses associated with Mr Hii or his family. Mr Hii arranged for the allocation of PIN numbers for the credit cards in a manner which was contrary to the Bank’s security policy, having persuaded other employees of the Bank to allow this. The appellant’s actions in arranging for the issuing of the credit cards was the foundation of the charges of obtaining a credit card with intent to defraud.
[4] After the credit cards were issued, withdrawals were made from the relevant credit card accounts. The total amount involved was approximately $127,000. The Crown alleged that Mr Hii had made these withdrawals, which was the foundation for the using charges. There was no direct evidence of that: the Crown case was based on circumstantial evidence.

The defence case at trial

[5] When questioned by the Police the appellant accepted that he had circumvented the Bank’s system to facilitate the issue of credit cards, and that he had obtained PIN numbers for those cards. He said that the customers were not fictitious, and that his actions had been undertaken for their convenience, and that he therefore had no intent to defraud.
[6] In relation to the charges of using a document with intent to defraud, the appellant said he had not used the credit cards and was not the person responsible for the making of withdrawals from the credit card accounts. The circumstantial evidence which the Crown relied on was:

(a) Evidence that eight of the ten persons in whose name the cards were issued did not exist, and one of those who did exist denied having made a credit card application;
(b) Evidence that deposit slips relating to payments made on the cards of two of the persons in whose name the cards were issued had the appellant’s fingerprints on them, and forensic evidence that the writing on the deposit slips was that of the appellant;
(c) Evidence that the appellant had arranged for the issuing of PIN numbers for the credit cards in breach of the Bank’s policy.

[7] The appellant did not give evidence at his trial, but rather relied on the six hours of videotapes of his statements to the Police.

Conviction appeal

[8] Counsel for the appellant Mr Cooke raised a number of points of appeal, but in oral argument pursued only two of these, namely:

(a) An inadequate direction to the jury as to the elements of the offences of using a document with intent to defraud;
(b) An inadequate direction to the jury on the burden of proof.

[9] We can deal with the latter very briefly. The Judge made a conventional and clear direction on the burden of proof. Mr Cooke accepted this, but argued that there ought to have been a tripartite direction of the kind often given in cases where an accused person gives evidence. There is no requirement that such a direction be given in cases such as the present, and the decision not to give direction of that kind in this case was unexceptionable. Accordingly this ground of appeal fails.
[10] The argument made by Mr Cooke on the direction relating to the elements of the using charges appeared to confuse two elements of the offence. Mr Cooke said that the Judge had not adequately directed on the appellant’s honest belief that he had not used the credit cards, relying on the assertions made by the appellant in his videotaped interview that he had not done so. He said the failure to make such a direction led to a miscarriage of justice.
[11] In fact, the Judge gave clear and adequate directions on Mr Hii’s belief in the context of the requirement that the Crown prove that the use of the credit cards had been undertaken with an intent to defraud. There was no real issue about that, because the appellant’s version of events was a denial that he had used the credit cards at all. He did not claim that he had used them, but with an honest intent. Thus honest belief was not a live issue in this context and the Judge’s directions were given for the sake of completeness only.
[12] Whether the appellant had used the credit cards was a matter of fact, not an issue of belief. He asserted in his video interview that he had not, and relied on this at trial. The Crown relied on the circumstantial evidence referred to earlier, and the jury was satisfied beyond reasonable doubt that he had used the credit cards and therefore convicted him on the using charges. His belief that he had not used them was irrelevant.
[13] The conviction appeal therefore fails.

Sentence appeal

[14] The Judge assessed the level of culpability of Mr Hii as being at a high level, noting that he had abused a position of trust with the Bank, and that the Bank was vulnerable because of his insider knowledge as to its systems. The Judge also saw the premeditation and planning as a further aggravating factor. She took as a starting point three and a half years imprisonment, taking into account the aggravating features. She noted the mitigating factors, particularly the appellant’s previous good character, and gave nine months credit for that factor, resulting in a sentence of imprisonment for two years and nine months.
[15] Mr Cooke argued that this was manifestly excessive having regard to similar authorities, and relied in particular on the decision of this Court in R v Varjan CA97/03 26 June 2003.
[16] In Varjan, the appellant had been sentenced to two years and eight months imprisonment for two charges of conspiracy to defraud and three charges of using a document with intent to defraud. The appellant in that case was also a Mobile Mortgage Manager for a Bank. He had processed and approved fraudulent loan applications made by a mortgage broker, and had also completed fraudulent loan application forms on behalf of home buyers. The loss involved in that case was $546,000 but the appellant’s gain was minimal. The mortgage broker was separately sentenced to a term of four years and three months imprisonment for his offending.
[17] On appeal this Court reduced the sentence to two years imprisonment, and gave leave to apply for home detention. The Court took a starting point of three years imprisonment, and reduced this to two years having regard to the significant mitigating features, particularly the appellant’s guilty plea, his co-operation with the Serious Fraud Office, his personal circumstances (he suffered stress and depression over the period of the offending for which he was on medication) and his previous good record (a long career in bank work to a high standard and his good works in the community).
[18] Mr Hii’s position is quite different from that of Mr Varjan. Unlike Mr Varjan, Mr Hii denied the offending and, notwithstanding the jury’s guilty verdict, continued to deny the offending at the time of sentencing. While he was entitled to have his previous good record appropriately recognised, he could not claim the benefit of a guilty plea as Mr Varjan could.
[19] Having considered carefully the decision of this Court in Varjan, and the other cases mentioned to us in argument by Mr Cooke, we are satisfied that the starting point in the present case was within the range available to the Judge for offending of this kind, and that the credit she gave to the appellant for his previous good record was generous. There is no basis for interfering with the sentence imposed in the District Court and we therefore decline the appeal against sentence.

Result

[20] The appeals against conviction and sentence are both dismissed.

Solicitors:
Nigel G Cooke, Auckland for Appellant
Crown Law Office, Wellington

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[5]	When questioned by the Police the appellant accepted that he had circumvented the Bank’s system to facilitate the issue of credit cards, and that he had obtained PIN numbers for those cards. He said that the customers were not fictitious, and that his actions had been undertaken for their convenience, and that he therefore had no intent to defraud.
[6]	In relation to the charges of using a document with intent to defraud, the appellant said he had not used the credit cards and was not the person responsible for the making of withdrawals from the credit card accounts. The circumstantial evidence which the Crown relied on was:

[9]	We can deal with the latter very briefly. The Judge made a conventional and clear direction on the burden of proof. Mr Cooke accepted this, but argued that there ought to have been a tripartite direction of the kind often given in cases where an accused person gives evidence. There is no requirement that such a direction be given in cases such as the present, and the decision not to give direction of that kind in this case was unexceptionable. Accordingly this ground of appeal fails.
[10]	The argument made by Mr Cooke on the direction relating to the elements of the using charges appeared to confuse two elements of the offence. Mr Cooke said that the Judge had not adequately directed on the appellant’s honest belief that he had not used the credit cards, relying on the assertions made by the appellant in his videotaped interview that he had not done so. He said the failure to make such a direction led to a miscarriage of justice.
[11]	In fact, the Judge gave clear and adequate directions on Mr Hii’s belief in the context of the requirement that the Crown prove that the use of the credit cards had been undertaken with an intent to defraud. There was no real issue about that, because the appellant’s version of events was a denial that he had used the credit cards at all. He did not claim that he had used them, but with an honest intent. Thus honest belief was not a live issue in this context and the Judge’s directions were given for the sake of completeness only.
[12]	Whether the appellant had used the credit cards was a matter of fact, not an issue of belief. He asserted in his video interview that he had not, and relied on this at trial. The Crown relied on the circumstantial evidence referred to earlier, and the jury was satisfied beyond reasonable doubt that he had used the credit cards and therefore convicted him on the using charges. His belief that he had not used them was irrelevant.
[13]	The conviction appeal therefore fails.

[14]	The Judge assessed the level of culpability of Mr Hii as being at a high level, noting that he had abused a position of trust with the Bank, and that the Bank was vulnerable because of his insider knowledge as to its systems. The Judge also saw the premeditation and planning as a further aggravating factor. She took as a starting point three and a half years imprisonment, taking into account the aggravating features. She noted the mitigating factors, particularly the appellant’s previous good character, and gave nine months credit for that factor, resulting in a sentence of imprisonment for two years and nine months.
[15]	Mr Cooke argued that this was manifestly excessive having regard to similar authorities, and relied in particular on the decision of this Court in R v Varjan CA97/03 26 June 2003.
[16]	In Varjan, the appellant had been sentenced to two years and eight months imprisonment for two charges of conspiracy to defraud and three charges of using a document with intent to defraud. The appellant in that case was also a Mobile Mortgage Manager for a Bank. He had processed and approved fraudulent loan applications made by a mortgage broker, and had also completed fraudulent loan application forms on behalf of home buyers. The loss involved in that case was $546,000 but the appellant’s gain was minimal. The mortgage broker was separately sentenced to a term of four years and three months imprisonment for his offending.
[17]	On appeal this Court reduced the sentence to two years imprisonment, and gave leave to apply for home detention. The Court took a starting point of three years imprisonment, and reduced this to two years having regard to the significant mitigating features, particularly the appellant’s guilty plea, his co-operation with the Serious Fraud Office, his personal circumstances (he suffered stress and depression over the period of the offending for which he was on medication) and his previous good record (a long career in bank work to a high standard and his good works in the community).
[18]	Mr Hii’s position is quite different from that of Mr Varjan. Unlike Mr Varjan, Mr Hii denied the offending and, notwithstanding the jury’s guilty verdict, continued to deny the offending at the time of sentencing. While he was entitled to have his previous good record appropriately recognised, he could not claim the benefit of a guilty plea as Mr Varjan could.
[19]	Having considered carefully the decision of this Court in Varjan, and the other cases mentioned to us in argument by Mr Cooke, we are satisfied that the starting point in the present case was within the range available to the Judge for offending of this kind, and that the credit she gave to the appellant for his previous good record was generous. There is no basis for interfering with the sentence imposed in the District Court and we therefore decline the appeal against sentence.